State v. Hembree

2025 UT App 166

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
NICHOLAS EZEKIEL HEMBREE,
Appellant.

Opinion
No. 20230888-CA
Filed November 13, 2025

Eighth District Court, Vernal Department
The Honorable Edwin T. Peterson
No. 191800398

Ramon Ortiz, Debra M. Nelson, Benjamin Miller, and
Wendy M. Brown, Attorneys for Appellant
Derek E. Brown and Emily Sopp,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and AMY J. OLIVER
concurred.

HARRIS, Judge:

¶1 After being charged in two separate cases with 56 different
crimes—most of which were felony charges accusing him of illicit
sexual conduct involving young girls—Nicholas Ezekiel Hembree
entered into a plea agreement with the State: he agreed to plead
to six counts, including four felonies (two of which were first-
degree), and the State agreed to dismiss the other 50. Hembree
filed no motion to withdraw his plea prior to sentencing. And
later, the district court sentenced Hembree to concurrent prison
terms of six years to life on the two first-degree felonies and
ordered that the sentences on the other counts run concurrently
State v. Hembree

with those. Hembree did not file a notice of appeal within thirty
days of his sentencing.

¶2 Instead, more than a year after sentencing and after a failed
pro se motion to withdraw his plea, Hembree filed a motion
asking the court to reinstate his time to file an appeal of his
sentence, asserting that he had not been informed of his right to do
so. The district court denied that motion, and Hembree now
challenges that denial on appeal. For the reasons discussed, we
affirm the court’s denial of the motion Hembree filed.

¶3 But Hembree also raises another issue, one that he
acknowledges is unpreserved for our review. He points out that,
during the pendency of this appeal, our supreme court decided
State v. Rippey, 2024 UT 45, a case in which it declared
unconstitutional certain portions of Utah’s Plea Withdrawal
Statute (the PWS). He asserts that Rippey represents a “landscape
shift” that he contends evidenced a “deprivation” of his right to
appeal his convictions, and on that alternative basis he asks us to
reinstate his right to appeal. But there are insurmountable
procedural problems with this request and, for the reasons
discussed, we decline Hembree’s invitation; we note, however,
that Hembree remains free to file a second motion in the district
court asking for reinstatement of the time to appeal.

BACKGROUND

¶4 In 2019, the State filed two criminal cases against Hembree.
In the first case, the State charged Hembree with six crimes, four
of which were misdemeanors, related to an incident in which
Hembree and four minors allegedly broke into a hotel room and
damaged property.

¶5 The second case was much more significant: in that one,
the State charged Hembree with 50 crimes, all of which were
felony sex offenses. In the most serious counts, the State accused

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Hembree of molesting two thirteen-year-old girls; the charges
associated with those incidents included rape of a child, object
rape of a child, and aggravated sexual abuse of a child, all first-
degree felonies. In addition, officers searched Hembree’s phone
and found nude photographs of one of the girls, as well as more
than 300 other images of child pornography; related to this, the
State charged Hembree with 40 counts of sexual exploitation of a
minor, all second-degree felonies.

¶6 As the cases proceeded toward trial, Hembree and the State
entered into plea negotiations, and they eventually reached an
agreement. In the first case, Hembree agreed to plead guilty to
two class A misdemeanors, one for criminal trespass and the other
for criminal mischief, and the State agreed to dismiss the other
four counts. And in the second case, Hembree agreed to plead
“guilty and mentally ill” to two counts of first-degree-felony
aggravated sexual abuse of a child, as well as to two amended
counts of third-degree-felony attempted sexual exploitation of a
minor. In exchange, the State agreed to dismiss all remaining
counts, including five first-degree-felony sex crime charges and at
least 38 second-degree-felony child pornography charges. In the
written statement memorializing the plea agreement, Hembree
admitted, among other things, that he “had sexual intercourse
with a thirteen year old female on two separate occasions,” that
he “penetrated another thirteen year old female’s vagina with a
vibrator and his fingers,” and that his phone contained not only
“three nude depictions” of one of the thirteen-year-old girls but
also “345 images of child pornography.” And that same plea
form—which Hembree signed—advised him that if he wished to
appeal his sentence, he “must file a notice of appeal within 30 days
after [his] sentence [was] entered.”

¶7 At the change-of-plea hearing, the court conducted a plea
colloquy with Hembree, and at the start of that discussion, it
asked Hembree whether he was “under the influence” of
“medications” or “anything that would cause [him] not to
understand the discussion.” Hembree responded by stating, “Not

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really . . . .” The trial judge—who by that point had been presiding
over Hembree’s case for about two years—then made “a record”
that, in his view, Hembree appeared as “capable” as the court had
ever seen him. The court also told Hembree that because he had
chosen to plead guilty, he was “giving up pretty much all rights
to an appeal because there would be nothing to appeal,” and that
he would “only have the right to ask to withdraw [his] plea up
until the time sentence was pronounced” and that after that he
“couldn’t even ask.” During that same discussion, Hembree
acknowledged that he had gone over the plea agreement form
“line-by-line” with his attorney. At the conclusion of the hearing,
the court accepted Hembree’s change of plea.

¶8 Later, the court held a sentencing hearing, and the court
and the attorneys discussed the fact that the presumptive sentence
on the felony counts was fifteen years to life but that the court
could deviate downward and impose a lesser sentence of ten or
even six years to life. The court and the attorneys also discussed
the fact that Hembree had pled “guilty but mentally ill” to some
of the counts and that he had struggled with mental health issues.
Against this backdrop, the court sentenced Hembree to
concurrent prison sentences of six years to life on the two first-
degree felonies, based on his plea of “guilty but mentally ill . . .
and the fact that [he had already] been incarcerated for an
extended period of time.” With this sentence, the court also
“enter[ed]” its “strongest recommendations . . . that [Hembree] be
placed in a mental health program . . . and that [he] receive some
treatment.” The court clarified that those two prison sentences
were to run concurrently with each other and that the sentences
on the lesser charges were to run concurrently with the sentences
for the first-degree felonies. At the end of the sentencing hearing,
the court wished Hembree “[g]ood luck,” but it made no mention
of Hembree’s right to appeal his sentence.

¶9 A little over three months after sentencing, Hembree filed
a handwritten pro se motion to withdraw his guilty plea. In his
motion, he claimed that at the time he entered his change of plea,

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he had not been in the right mindset due to medication clouding
his judgment, and he asserted that because he was no longer
taking that medication, he was now in the right mindset and
wanted to take his case to trial. The court denied Hembree’s
motion, stating that a “request to withdraw a guilty plea must be
made prior to sentencing.”

¶10 About a month later, the attorney who had been
representing Hembree (Plea Counsel) filed a motion to withdraw.
In this motion, Plea Counsel certified, pursuant to rule 36(b)(2) of
the Utah Rules of Criminal Procedure, that she had advised
Hembree “of the right to appeal.” The certification did not specify
when this advice had been given.

¶11 The following year, some fourteen months after
sentencing, Hembree’s new counsel (Appellate Counsel) filed a
motion (the Reinstatement Motion) asking the district court to
reinstate the period within which Hembree could file a direct
appeal of his sentence. In the Reinstatement Motion, Hembree
asserted that neither the court nor Plea Counsel had properly
advised him of his right to appeal his sentence, and he asserted
that, as a result, he had been “unconstitutionally den[ied] . . . his
right to appeal.” Hembree acknowledged Plea Counsel’s
certification that she had “advised him of his right to appeal,” but
he asserted that this certification indicated only that the
“advisory” had been given “months after the time for appeal had
expired.” And Hembree asserted that his “intent to appeal,” had
he been properly advised, was “clear from the record,” as
evidenced by, among other things, his post-sentencing pro se
motion to withdraw his plea.

¶12 The State opposed the Reinstatement Motion, asserting
that Hembree had been “informed of his right to appeal his
sentence by both the [c]ourt” and Plea Counsel. In addition, the
State took issue with Hembree’s assertion that the record
demonstrated an intent on Hembree’s part to appeal his sentence,
offering its view that Hembree had received “the lightest possible

20230888-CA 5 2025 UT App 166
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sentence he could have received under the law” and therefore had
no incentive to appeal his sentence.

¶13 The court scheduled the matter for oral argument, and just
days before the scheduled hearing, Appellate Counsel filed a
declaration in which he asserted that he had spoken with
Hembree and that Hembree had told him, among other things,
that Plea Counsel had not met with him “in the weeks before or
after his sentencing to discuss potential outcomes or options,” that
Plea Counsel “did not notify him about the right to appeal his
sentence in the weeks preceding the sentencing hearing or within
the 30 days available to appeal,” and that Hembree and Plea
Counsel “did not speak after sentencing.” Appellate Counsel also
averred that Hembree had told him that if he had “been aware of
his appellate rights, he would have initiated a timely appeal.”

¶14 At oral argument, the court observed that Hembree had
been “advised of his right to appeal when he pled.” And the court
offered its view that, at sentencing, it had “pronounced the
minimal sentence for these charges available under the law” and
that there was no “lesser penalty” that the court could have
imposed. Indeed, the court went so far as to state that any appeal
of Hembree’s sentence would be “a waste of time and effort” and
a “waste of judicial resources” because even if he won the appeal,
he’d just get a new sentencing hearing at which the court would
have to “pronounce the same sentence again because it’s the
lightest sentence available.” And at the conclusion of the hearing,
the court found that Plea Counsel had “file[d] a document with
the [c]ourt saying she had advised [Hembree] of his rights,” 1 and

1. The court also made a finding that “at sentencing [Hembree] was
advised of his rights and acknowledged the right to appeal his
sentence 30 days after it was entered.” (Emphasis added.)
Hembree challenges this finding as clearly erroneous and
unsupported by evidence, and the State concedes the point. The
court did not advise Hembree, during the sentencing hearing, of
his right to appeal, and our opinion takes this into account.

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State v. Hembree

it found “by a preponderance of the evidence that [Hembree]
knew of his rights to appeal based upon giving . . . weight to the
individuals that ha[d] produced statements before the [c]ourt.”
Accordingly, the court denied the Reinstatement Motion.

¶15 Within thirty days of the court’s order denying that
motion, Hembree filed a notice of appeal, indicating that he was
challenging “the denial of his motion to reinstate the period for
filing a direct appeal” of his sentence. A few months later,
Hembree filed his opening brief on appeal. Several months after
that—while the appeal was still pending, and before the State had
filed its responsive brief—our supreme court issued its decision
in State v. Rippey, 2024 UT 45. In that opinion, the court held that
certain provisions of the PWS “violate[d] the separation of powers
required by the Utah Constitution” and that those provisions
could therefore not operate to bar defendants from challenging
their guilty pleas on direct appeal. Id. ¶¶ 2, 48–51. However, the
court concluded that its “normal rules of preservation and waiver
apply” to such appeals, and that therefore a defendant who makes
no attempt to withdraw a plea “in the district court in a way that
the district court had the opportunity to rule on it” would have
failed to properly preserve a challenge to the plea for appellate
review, and that in such cases “the defendant will need to show
that an exception to preservation applies.” Id. ¶¶ 48–49.

¶16 Following the issuance of the Rippey decision, and before
filing his reply brief on appeal, Hembree asked us to “permit
supplemental briefing” on the question of whether Rippey
constituted a “deprivation of appellate rights” pursuant to rule
4(f) of the Utah Rules of Appellate Procedure and could therefore
constitute “an additional ground for reversing” the court’s order
denying the Reinstatement Motion. The State opposed this
motion, and we eventually issued an order denying the motion to
the extent it sought “wholesale supplemental briefing.” We noted,
however, that “nothing in [the] order should be construed as
preventing [Hembree], at his option, from discussing the Rippey
issue in his reply brief,” but we also stated that if Hembree chose

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to do so, the State would “be afforded the opportunity to file a
sur-reply brief.” Thereafter, Hembree filed a reply brief that
included argument regarding the Rippey issue, and the State filed
a sur-reply brief a few weeks later.

ISSUES AND STANDARDS OF REVIEW

¶17 In this appeal, Hembree presents two issues for our review.
First, he challenges the denial of the Reinstatement Motion, in
which he sought an order reinstating the time within which he
could mount a direct appeal of his sentence. “We review [a district]
court’s legal conclusion that [a defendant] was not
unconstitutionally deprived of his [or her] right to appeal for
correctness but give deference to its underlying factual findings,
meaning that we will not overturn them unless they are clearly
erroneous.” State v. Kabor, 2013 UT App 12, ¶ 8, 295 P.3d 193.

¶18 Second, Hembree asserts that Rippey’s “landscape shift”
constitutes a circumstance by which he was, through no fault of
his own, deprived of an opportunity to mount a direct appeal of
his convictions. He acknowledges that this legal theory was never
brought to the attention of the district court and that it is therefore
unpreserved for our review on appeal. But he asks us to conclude
that “exceptional circumstances” justify our review of this
unpreserved issue. Whether such circumstances exist is a question
that, by definition, arises in the first instance on appeal, and it is
therefore a question of law. See State v. Kozlov, 2012 UT App 114,
¶ 28, 276 P.3d 1207 (explaining that an exceptional circumstances
claim “presents a legal question that we review for correctness”).

ANALYSIS

¶19 As a general matter, parties have a right to a direct appeal,
so long as they file a notice of appeal “within 30 days after the date
of entry of the judgment.” Utah R. App. P. 4(a). However, “[t]here
is an exception for criminal defendants . . . to the general rule that

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requires the timely filing of a notice of appeal.” State v. Collins,
2014 UT 61, ¶ 23, 342 P.3d 789. This exception was originally
articulated in Manning v. State, 2005 UT 61, 122 P.3d 628, but is
now codified in our rules of appellate procedure, which provide
(in relevant part) as follows: “The trial court will reinstate the 30
day period for filing a direct appeal in a criminal case if a
defendant demonstrates by a preponderance of the evidence that
the defendant was deprived of the right to appeal through no fault
of the defendant.” Utah R. App. P. 4(f)(1).

¶20 In Manning, our supreme court held that a district court
“may reinstate the time frame for filing a direct appeal where the
defendant can prove, based on facts in the record or determined
through additional evidentiary hearings, that [the defendant] has
been unconstitutionally deprived, through no fault of his [or her]
own, of [the] right to appeal.” 2005 UT 61, ¶ 31. And although rule
4(f) now controls, Manning still informs our understanding of the
rule. See State v. Brown, 2021 UT 11, ¶ 16, 489 P.3d 152 (“[W]hile
Manning no longer supplies a valid procedural basis for accessing
the right to appeal separate and apart from rule 4(f), it does inform
the discussion of what rule 4(f) means . . . .”). In Manning, the court
described three circumstances in which a defendant might be
considered to have been deprived of the right to appeal through
no fault of his or her own:

(1) the defendant asked his or her attorney to file an
appeal but the attorney, after agreeing to file, failed
to do so; (2) the defendant diligently but futilely
attempted to appeal within the statutory time frame
without fault on defendant’s part; or (3) the court or
the defendant’s attorney failed to properly advise
defendant of the right to appeal.

2005 UT 61, ¶ 31 (cleaned up). This list was not intended to be
exhaustive; indeed, the court stated that the “circumstances” in
which these principles apply “would include” the three identified
scenarios. Id.

20230888-CA 9 2025 UT App 166
State v. Hembree

¶21 In this case, Hembree’s appeal has two aspects. In the first
part, he challenges the district court’s denial of the Reinstatement
Motion, in which he invoked the third Manning scenario and
asserted that he had not been properly advised of his right to
appeal his sentence. And in the second part, he invokes Rippey and
asserts that our supreme court’s issuance of that decision
constituted a circumstance—not specifically listed in Manning—
by which he was, through no fault of his own, deprived of an
opportunity to mount a direct appeal of his convictions. We
address these two parts of Hembree’s appeal, in turn.

I. The Reinstatement Motion: Appeal of the Sentence

¶22 First, Hembree challenges the denial of the motion he
actually filed. Here, he invokes the third Manning scenario, and
he claims that neither Plea Counsel nor the district court advised
him of his right to appeal his sentence. Individuals “relying on the
third Manning scenario must show: (1) that neither the court nor
counsel properly advised them of their right to appeal, and (2)
that ‘but for’ this failure they would have filed an appeal.” State v.
Collins, 2014 UT 61, ¶ 29, 342 P.3d 789.

¶23 The district court denied the Reinstatement Motion,
specifically finding that Hembree was advised of his right to
appeal and strongly implying that Hembree had so little to gain
from any potential appeal that Hembree wouldn’t have appealed
in any event. Hembree now challenges the court’s determinations,
but we find Hembree’s arguments largely unpersuasive.

A. Advisement of the Right to Appeal

¶24 Our rules of criminal procedure require that defendants be
advised—at two different points in the process—of the right to
appeal. First, when a defendant enters a guilty plea, the court
must find that “the defendant has been advised that the right of
appeal is limited.” See Utah R. Crim. P. 11(e)(8). In this case,
Hembree was so advised: in the plea statement he signed, he was

20230888-CA 10 2025 UT App 166
State v. Hembree

informed that he had the right to appeal his sentence within thirty
days, and at the change-of-plea hearing, the court advised
Hembree that his right to appeal was limited. 2

¶25 Second, our rules require district courts, at the time of
sentencing, to “advise the defendant of defendant’s right to
appeal, the time within which any appeal must be filed and the
right to retain counsel or have counsel appointed by the court if
indigent.” See id. R. 22(c)(1). At the sentencing hearing, the court
did not give any such advice to Hembree. See supra ¶¶ 8 & 14 n.1.
But Plea Counsel later certified that she had advised Hembree “of
the right to appeal,” although in the certification she did not
specify when this advice had been given. Plea Counsel’s averment
was contradicted by information in Appellate Counsel’s later-
filed affidavit, in which he stated that Hembree told him, among
other things, that Plea Counsel “did not notify him about the right
to appeal his sentence in the weeks preceding the sentencing
hearing or within the 30 days available to appeal.”

¶26 From this evidence, the court made a factual finding “by
[a] preponderance of the evidence that [Hembree] knew of his
right to appeal based upon weight given by individuals that ha[d]
produced statements before the court.” As already noted, we
must give “deference” to this finding and will overturn it only if
it is “clearly erroneous.” State v. Kabor, 2013 UT App 12, ¶ 8, 295
P.3d 193. A district court’s finding is clearly erroneous if it is
“either against the clear weight of the evidence or [it] . . . induce[s]

2. As Hembree points out, the court’s advice in this regard was
arguably too energetic. The court told Hembree that, because he
had chosen to plead guilty, he was “giving up pretty much all
rights to an appeal because there would be nothing to appeal.”
While sentencing appeals are undoubtedly difficult, it is an
overstatement to say that a defendant who pleads guilty gives up
“pretty much all rights to an appeal.” But here, given our
resolution of the issues in the case, the district court’s perhaps
overzealous advice in this regard did not prejudice Hembree.

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State v. Hembree

a definite and firm conviction that a mistake has been made.”
Lundahl Farms LLC v. Nielsen, 2021 UT App 146, ¶ 40, 504 P.3d 735
(cleaned up). And in this setting, “[t]he pill that is hard for many
appellants to swallow is that if there is evidence supporting a
finding, absent a legal problem—a ‘fatal flaw’—with that
evidence, the finding will stand, even though there is ample
record evidence that would have supported contrary findings.”
Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733.

¶27 Here, there is record evidence supporting the district
court’s finding: Plea Counsel’s certification attesting that she
advised Hembree of his right to appeal his sentence. In this
situation, the court’s failure to so advise Hembree at sentencing
was not prejudicial. See State v. Collins, 2014 UT 61, ¶ 25, 342 P.3d
789 (“[A] court’s failure to fully comply with rule 22(c)(1) will not
necessarily result in a deprivation of the defendant’s right to
appeal because the defendant’s attorney may independently
inform the defendant of the right.”).

¶28 Hembree pushes back against reliance on Plea Counsel’s
certification by making two good points: that advice given at the
time of the plea should not count in this context, because if it did,
then rule 22(c)(1)’s requirement that a defendant be advised at the
time of sentencing would be diluted; and that Plea Counsel did
not specify exactly when she advised Hembree of his right to
appeal his sentence. But even assuming the validity of these two
points, the court’s finding is nevertheless supported by evidence
in the record and reasonable inferences drawn therefrom.

¶29 We agree with the State that it is reasonable to infer, from
Plea Counsel’s certification, that she advised Hembree of his right
to appeal within the time frame for mounting that appeal. Indeed,
as the State indicates, “the withdrawal certifications” would have
been “pointless otherwise.” Those certifications were made
pursuant to rule 36(b)(2) of the Utah Rules of Criminal Procedure,
which requires attorneys withdrawing from representation in a
criminal case “after entry of judgment” to certify not only that

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their client had, prior to withdrawal, “been advised of the right to
appeal,” but also that, if the filing of such an appeal was “in
counsel’s opinion . . . appropriate,” the required notice of appeal
and related documents had been filed. In context, this rule
requires that the advice about appellate rights be given in time to
mount the appeal in question. And the district court was well
within its discretion to infer here that Plea Counsel, by making the
certification, had done just that.

¶30 To be sure, evidence existed that points in the other
direction, most notably Appellate Counsel’s affidavit containing
the secondhand assertion that Plea Counsel had in fact not
advised Hembree of his right to appeal. But where conflicting
evidence exists, a factfinder may exercise its discretion to weigh
the evidence in the manner it finds appropriate. And here, the
district court’s finding that Hembree had been properly and
timely advised of his right to appeal is supported by the record
and is therefore not clearly erroneous. Hembree’s challenge to the
district court’s order denying the Reinstatement Motion is
therefore infirm on this ground alone.

B. Whether Hembree Would Have Appealed

¶31 But in any event, Hembree’s challenge fails on the second
element too. In our view, the district court made an implied
finding that Hembree would not have appealed his sentence even
if he had been properly advised of his right to do so. And such a
finding enjoys ample support in the record.

¶32 During the hearing on the Reinstatement Motion, the court
indicated that, at sentencing, it had “pronounced the minimal
sentence for the[] charges available under the law” and that “there
[was] not a lesser penalty that [the court] could pronounce,” and
from those statements, the court reasoned that any appeal would
have been “a waste of time and effort” because even if Hembree
won his appeal, what he’d win would be a remand to the district
court just to have the court “pronounce the same sentence again.”

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Hembree criticizes the court for making these comments,
asserting that the merits of a potential appeal are immaterial to
the question of whether the time for mounting an appeal should
be reinstated. Hembree’s assertions are correct as a technical
matter: the elements of the reinstatement-of-time-to-appeal test
do not include examination of the potential appeal’s merits. See
State v. Collins, 2014 UT 61, ¶ 29, 342 P.3d 789 (setting forth the
two-part test); cf. Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000) (“[I]t
is unfair to require an indigent, perhaps pro se, defendant to
demonstrate that [a] hypothetical appeal might have had merit
before any advocate has ever reviewed the record in his [or her]
case in search of potentially meritorious grounds for appeal.”). A
court should not deny a Manning/rule 4(f) motion simply because
it believes that the potential appeal would be meritless.

¶33 But while the merits of the potential appeal are not directly
relevant, the question of how much a defendant stands to gain (or
potentially lose) from a prospective appeal is a critical part of the
second step of the rule 4(f) test: whether the defendant would
have chosen to file an appeal had the defendant been properly
advised of the right to do so. In this context, questions about
whether the plea deal was favorable, and whether the sentence
imposed was lenient, are relevant factors that can be considered
in assessing whether a defendant would have appealed. See, e.g.,
State v. Blanke, 2023 UT App 113, ¶ 20, 537 P.3d 654 (noting that
the defendant had “pled guilty pursuant to a favorable plea
agreement” that allowed him to resolve two cases at once, and
concluding that, in that situation, “there would have been no
reason for [him] to consider timely appealing his sentence” and
that “[d]oing so would have run counter to his interests”).

¶34 Our review of the record leads us to conclude that it was in
this context—and not as an untethered review of the merits—that
the court was assessing the worth of Hembree’s potential appeal.
In particular, the court’s statement that the appeal would be a
“waste of time and effort” was not a criticism of the merits of any
such appeal because, in making those comments, the court was

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implicitly assuming that Hembree would win the appeal. The
court’s point, as we understand it, was simply that even if
Hembree won the appeal, he wouldn’t have gained anything
because an order vacating the lenient sentence would award
Hembree nothing more than a new sentencing hearing at which
the court would likely impose the exact same sentence. In this
context, the court’s implied finding that neither Hembree nor a
reasonable person in his situation 3 would have filed an appeal,
even if proper advice about the right to appeal had been given,
was not clearly erroneous and was amply supported by the facts
in the record, even if some evidence (for instance, the fact that
Hembree had filed a pro se post-sentence motion to withdraw his
plea) pointed in the other direction.

¶35 For all of these reasons, then, we affirm the district court’s
order denying the Reinstatement Motion, which was the only
motion that Hembree actually filed and which was limited to
discussion of a potential appeal of Hembree’s sentence.

3. Our cases have discussed the relevant standard in different
ways. Compare State v. Przybycien, 2023 UT App 153, ¶ 43, 541 P.3d
288 (using a seemingly objective test when stating “for these
reasons, we cannot say that, under the circumstances of this case,
a rational defendant would have wanted to appeal the sentence
[the defendant] received” (cleaned up)), with State v. Blanke, 2023
UT App 113, ¶ 18, 537 P.3d 654 (employing a subjective test when
stating “[r]ather, our supreme court has clarified that a defendant
in [his] position must carry the burden of proof that he would
have appealed his sentence if properly informed of his right to do
so”). In this case, however, the standard is not determinative; as
we understand the district court’s sentiments, it believed that
neither Hembree nor a reasonable person in Hembree’s position
would have appealed this particular sentence.

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II. The Unfiled Rippey Motion: Appeal of the Convictions

¶36 Second, Hembree argues, on an alternative basis, that a
“landscape shift” occurred when our supreme court issued its
decision in State v. Rippey, 2024 UT 45, an event he characterizes
as evidence of a “deprivation” of his right to appeal his convictions.
From this, Hembree asks us to reinstate his right to appeal, which
appeal would potentially include challenges not only to his
sentence but also to his convictions. Hembree acknowledges that
this issue is unpreserved for appellate review—that is, Hembree
did not ever ask the district court to reinstate his time for appeal
on this basis, and the court had no opportunity to make a ruling
on this issue. See State v. Florez, 2020 UT App 76, ¶ 17 n.3, 465 P.3d
307 (stating that “the main point of our preservation rules is to
afford a [district] court the opportunity to rule on a disputed
issue”). Hembree nevertheless asserts that this situation involves
“exceptional circumstances” under which we can and should
review this unpreserved issue. But we disagree, and for the
reasons explained, we decline to reach the merits of Hembree’s
alternative argument.

¶37 Ordinarily, we do not decide issues that are unpreserved
for our review on appeal. See State v. Johnson, 2017 UT 76, ¶ 18, 416
P.3d 443 (“A failure to preserve an issue in the [district] court
generally precludes a party from arguing that issue in an
appellate court, absent a valid exception.”). But there are three
recognized exceptions to our preservation requirement: plain
error, ineffective assistance of counsel, and exceptional
circumstances. Id. ¶ 19. “When an issue is not preserved in the
[district] court, but a party seeks to raise it on appeal, the party
must establish the applicability of one of these exceptions to
persuade an appellate court to reach that issue.” Id.

¶38 Here, Hembree attempts to invoke the third listed
exception, the one reserved for “exceptional circumstances.” Id.
This exception is “often invoked but rarely applied.” State v.
Dowhaniuk, 2025 UT App 100, ¶ 19, 574 P.3d 1000. Indeed, we

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apply it only “where a rare procedural anomaly has either
prevented an appellant from preserving an issue or excuses a
failure to do so.” State v. Van Huizen, 2019 UT 01, ¶ 22, 435 P.3d
202 (cleaned up); see also Johnson, 2017 UT 76, ¶ 29 (stating that the
“exceptional circumstances doctrine is applied sparingly” and is
reserved “for the most unusual circumstances where our failure
to consider an issue that was not properly preserved for appeal
would . . . result[] in manifest injustice” (cleaned up)). Only if such
a rare procedural anomaly exists does the door open “to a deeper
inquiry” in which “additional factors must be considered to
determine whether an appellate court should reach an
unpreserved issue.” Johnson, 2017 UT 76, ¶ 29. Those factors
include “(a) whether the failure to address an unpreserved issue
would result in manifest injustice, (b) whether there is a
significant constitutional right or liberty interest at stake, and
(c) judicial economy.” Kelly v. Timber Lakes Prop. Owners Ass’n,
2022 UT App 23, ¶ 21 n.3, 507 P.3d 357 (cleaned up).

¶39 Here, Hembree asserts that the issuance of the Rippey
opinion in the midst of this appeal constitutes a rare “procedural
anomaly” that qualifies as an exceptional circumstance that
excuses his failure to ask the district court to reinstate the time
within which he could appeal his convictions. He points out that,
at the time he filed the Reinstatement Motion, he was legally and
jurisdictionally barred from challenging his underlying guilty
plea and associated convictions, and that he gained the ability to
do so only after issuance of the Rippey decision. As he puts it,
“because the change in law came after” he filed the Reinstatement
Motion and after the court made its decision on that motion, he
“could not have raised” his alternative claim before the district
court at the time he filed the Reinstatement Motion.

¶40 For the purposes of our analysis, we will assume—without
deciding—that the issuance of the Rippey decision constituted the
sort of rare procedural anomaly that might open the door to the
deeper inquiry under the exceptional circumstances doctrine. But
even indulging this assumption, after undergoing the deeper

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State v. Hembree

inquiry we nevertheless decline to review the merits of Hembree’s
alternative claim in this appeal, because in our view Hembree
remains free, even after disposition of this appeal, to file a new
Manning motion in the district court, and given the type of
analysis that motion requires, it is best if that motion is
adjudicated in the first instance in that court.

¶41 First, we see nothing in applicable rules or caselaw that
would prevent a defendant from filing more than one Manning
motion, at least as long as the previous motions are denied. For
fairly obvious reasons, as soon as any such motion is successful, a
defendant wins reinstatement of the right to initiate a direct
appeal in the case, and litigants get only one shot at a direct
appeal. Accordingly, if a defendant is successful in filing a
Manning motion and instituting a reinstated direct appeal, that
defendant may not later file another similar motion. But if a
defendant’s Manning motion is denied, and no direct appeal has
ever been filed, then we see no reason why a defendant could not
file a second Manning motion, assuming of course that new
grounds have arisen that, for whatever reason, could not have
been raised or included in the first motion.

¶42 Certainly, nothing in rule 4(f) forbids the filing of multiple
Manning motions. See generally Utah R. App. P. 4(f). The rule does
require that any such motion “be filed within one year, or within
a reasonable time, whichever is later, from the day on which the
defendant personally knew, or should have known in the exercise
of reasonable diligence, of evidentiary facts forming the basis of
the claim that the defendant was deprived of the right to appeal.”
Id. R. 4(f)(2). But because multiple grounds may exist upon which
such motions may be filed, a defendant could conceivably
discover, at different times, different reasons for the deprivation
of the defendant’s appellate rights. And if we indulge the
assumption, for purposes of our analysis, that the issuance of a
law-changing appellate opinion could constitute a rule 4(f)
deprivation circumstance, that would be an instance in which a

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State v. Hembree

defendant might justifiably not discover, until the issuance of that
opinion, that the defendant has a right to mount an appeal.

¶43 And we think that that issue, along with the rest of the
Manning/rule 4(f) analysis, should be decided by the district court
in the first instance after full and complete briefing. As already
noted, in this appeal Hembree raised the relevant legal question—
whether Rippey’s issuance constituted a rule 4(f) deprivation
circumstance—for the first time in his reply brief. Because we
allowed the State to file a sur-reply memorandum, we have the
benefit of the State’s response to Hembree’s argument, and the
State raises some interesting points. But we do not have the
benefit of Hembree’s reply to those arguments, and if the issue
were decided in the district court in the first instance, we would
not only have the benefit of full briefing from the parties but also
the benefit of the district court’s thinking on the matter. See Kay v.
Barnes Bullets, 2022 UT 3, ¶ 20, 506 P.3d 530 (declining to address
a legal question in the first instance “without the benefit of full
briefing on the subject”).

¶44 But even more concerning to us is the notion of deciding
the second part of the relevant test in the first instance. Hembree’s
argument does not directly invoke the third Manning scenario, but
his argument strikes us as a variant of it: he asserts that, given the
state of the law at the time, he did not know and could not have
known that he had the right to appeal his convictions. And
defendants asserting that they were unaware of their right to
appeal must—to obtain relief on a Manning motion—demonstrate
that they would have appealed if they had been aware of their
right to do so. See State v. Collins, 2014 UT 61, ¶ 30, 342 P.3d 789
(“Implicit in this [deprivation] requirement is the recognition that
where a defendant would not have appealed anyway, there is no
deprivation of the right to appeal and any error affecting that right
would be harmless.”); see also State v. Blanke, 2023 UT App 113,
¶ 16, 537 P.3d 654 (stating that a defendant must show “that an
appeal would have been taken had the defendant been properly
informed of the right”). In this specific context, that would require

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Hembree to demonstrate that, if he had known that he was not
procedurally barred from appealing his convictions following his
plea, he would have actually mounted such an appeal.

¶45 And as discussed in the previous section, a determination
about whether a defendant would have appealed had that
defendant been properly informed of the right to do so involves a
question upon which a district court must make a factual finding.
See State v. Bluemel, 2023 UT App 142, ¶ 33 & n.7, 540 P.3d 756
(characterizing a district court’s determination on the second
Manning factor as a “finding,” and remanding because the court’s
findings on that point were inadequate). Indeed, this inquiry often
involves assessment of witnesses’ credibility. See Collins, 2014 UT
61, ¶ 57. Such findings are reviewed deferentially; we will
overturn them only if they are clearly erroneous. See State v. Kabor,
2013 UT App 12, ¶ 8, 295 P.3d 193. And we are understandably
reluctant to decide, in the first instance, questions on which we
would apply a deferential standard on regular appellate review.
See State v. Dowhaniuk, 2025 UT App 100, ¶ 31, 574 P.3d 1000
(declining a litigant’s invitation to undertake, in the first instance,
an inquiry that “should ordinarily be made in the first instance by
the district court,” and noting our general reluctance to do so). We
are likely to do so only when the answer to the question is “clear
enough to remove it from the district court’s purview as a matter
of law.” Id.

¶46 In this case, it is far from obvious that Hembree would have
appealed his convictions, even if Rippey had been decided at the
time he had to make his decision. The holding in Rippey is actually
quite narrow: parts of the PWS are unconstitutional, but the
“normal rules of preservation and waiver” otherwise apply. See
2024 UT 45, ¶ 48. Thus, while a defendant is no longer
jurisdictionally barred from challenging an entered plea, such a
challenge is not without restrictions: the defendant must still
make a motion to withdraw that plea before sentencing in order
to preserve the issue for appellate review. See id. ¶ 49 (stating that,
“[i]n practice,” the Rippey decision “means that whether a

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defendant may challenge a guilty plea on direct appeal will
depend on whether [the defendant] attempted to withdraw that
plea in the district court in a way that the district court had the
opportunity to rule on it”); see also State v. Fretwell, 2025 UT App
96, ¶ 4, 574 P.3d 526 (per curiam) (stating that a district court lacks
jurisdiction to consider a defendant’s post-judgment motion to
withdraw a plea), petition for cert. filed, Aug. 26, 2025 (No.
20250983). If a defendant fails to make a timely motion to
withdraw a plea, that defendant is no longer—after Rippey—
jurisdictionally barred from challenging that plea on direct
appeal, but in that instance the defendant’s challenge must come
through one of the exceptions to our preservation requirement.
See Rippey, 2024 UT 45, ¶ 49.

¶47 In this case, Hembree made a pro se motion to withdraw
his plea, but not until after his sentence had been entered. The
court denied Hembree’s motion, stating that a “request to
withdraw a guilty plea must be made prior to sentencing.” Thus,
any challenge that Hembree might make, on direct appeal, to the
convictions that resulted from his pleas will be unpreserved, and
that challenge will therefore need to be routed through one of the
exceptions to our preservation requirement, the most common of
which is the one for ineffective assistance of counsel. Thus, in
assessing whether Hembree would have appealed his convictions
had he known about Rippey, a court will likely need to examine
whether Hembree would have mounted an ineffective-assistance
challenge to the entry of his plea.

¶48 And on these facts, we do not think it “clear enough” that
Hembree would have mounted such a challenge. See Dowhaniuk,
2025 UT App 100, ¶ 31. As already noted, Hembree received a plea
deal that, on its face, appears quite favorable to him: he was
charged with 56 counts, including 50 felony sex offenses, but pled
to only six of them, four of which were felonies. The State agreed
to dismiss the other 50 counts. It is certainly conceivable that, after
assessing the situation, the district court could make a supported
factual finding that Hembree would not have challenged this

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State v. Hembree

particular plea deal in a direct appeal in which he was limited to
raising an ineffective assistance claim. See Blanke, 2023 UT App
113, ¶ 20 (noting that the defendant had “pled guilty pursuant to
a favorable plea agreement,” and concluding that under the
circumstances “there would have been no reason for [him] to
consider timely appealing his sentence”); see also State v.
Przybycien, 2023 UT App 153, ¶ 43, 541 P.3d 288 (rejecting an
ineffective assistance claim in a similar context because, under the
circumstances of that case, “a rational defendant would [not] have
wanted to appeal the sentence [the defendant] received” (cleaned
up)). At a minimum, we must leave any such determination “for
the district court to [make] in the first instance,” Dowhaniuk, 2025
UT App 100, ¶ 31, which decision we would review deferentially
in any eventual appeal.

¶49 For all of these reasons, we decline Hembree’s invitation to
apply the exceptional circumstances doctrine and reach the merits
of his unpreserved issues. These issues should be determined by
the district court in the first instance, and in this situation those
issues can be timely brought before that court. 4

CONCLUSION

¶50 We perceive no error in the district court’s order denying
the Reinstatement Motion. The court’s factual findings—that

4. Not only do we perceive no categorical bar, in either rule 4(f) or
in Manning, to the filing of a second motion to reinstate the time
for filing a direct appeal, but in this situation Hembree still has
time within which to file such a motion. The rule requires that any
such motion be filed “within one year, or within a reasonable
time,” from the day on which Hembree learned of the basis for his
claim. Utah R. App. P. 4(f)(2). Our supreme court issued its
decision in Rippey on December 27, 2024, meaning that there is still
time within the one-year post-Rippey period for Hembree to file a
second Manning motion based on Rippey.

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Hembree had been advised of the right to appeal his sentence and
that he would not have done so in any event—are supported by
the record. We therefore affirm the denial of that motion.

¶51 And we do not reach the merits of Hembree’s unpreserved
issue, because exceptional circumstances for doing so do not exist
here, where the relevant issues should be decided in the first
instance by the district court after full briefing and where those
issues can still be timely brought to the attention of that court.

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